9 May 2010

Writ of 'Mandamus': The law revisited

In a recent decision the Supreme Court has explained the nature and ambit of the writ of 'Mandamus' as provided for under the Constitution and vested in the Supreme Court and High Court under the extraordinary jurisdiction conferred on them in terms of Article 32 and 226 of the Constitution. Dealing with the challenge to an order passed by the High Court of Kerala refusing to interfere in a petition filed by an educational society challenging discriminatory treatment by the Government, the Supreme Court went on to explain the nature and ambit of powers conferred on the High Court in terms of 'writ of mandamus' available with it to prevent failure of justice. 

The rationale underlying writ of 'mandamus' was explained by the Supreme Court in the following terms;

35. While dismissing the writ petition the Hon’ble High Court with respect, had taken a rather restricted view of the writ of Mandamus. The writ of Mandamus was originally a common law remedy, based on Royal Authority. In England, the writ is widely used in public law to prevent failure of justice in a wide variety of cases.
36. In England this writ was and still remains a prerogative writ. In America it is a writ of right. (Law of Mandamus by S.S. Merrill, Chicago, T.H. Flood and Company, 1892, para 62, page 71). 
37. About this writ, SA de Smith in ‘Judicial Review of Administrative Action’, 2nd edn., pp 378 & 379 said that this writ was devised to prevent disorder from a failure of justice and defect of police and was used to compel the performance of a specific duty.
38. About this writ in 1762 Lord Mansfield observed that ‘within the past century it had been liberally interposed for the benefit of the subject and advancement of justice’.
39. The exact observations of Lord Mansfield about this writ has been quoted in Wade’s ‘Administrative Law, Tenth Edition’ and those observations are still relevant in understanding the scope of Mandamus. Those observations are quoted below:-
“It was introduced, to prevent disorder from a failure of justice, and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one…..The value of the matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a right, and no other specific remedy, this should not be denied. Writs of mandamus have been granted, to admit lecturers, clerks, sextons, and scavengers & c., to restore an alderman to precedency, an attorney to practice in an inferior court,& c.” (H.W.R. Wade & C.F. Forsyth: Administrative Law, 10th Edition, page 522-23).
40. De Smith in Judicial Review, Sixth Edition has also acknowledged the contribution of Lord Mansfield which led to the development of law on Writ of Mandamus. The speech of Lord Mansfield in R Vs. Blooer, (1760) 2 Burr, runs as under:
“a prerogative writ flowing from the King himself, sitting in his court, superintending the police and preserving the peace of this country”.(See De Smith’s Judicial Review 6th Edition, Sweet and Maxwell page 795 para 15-036.)
41. Almost a century ago, Darling J quoted the observations in Rex Vs. The Justices of Denbighshire, (1803) 4 East, 142, in The King Vs. The Revising Barrister etc. {(1912) 3 King’s Bench 518} which explains the wide sweep of Mandamus. The relevant observations are:
“..Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable….” (See page 529)
42. At page 531 of the report, Channell, J said about Mandamus: “It is most useful jurisdiction which enables this Court to set right mistakes”.
43. In Dwarka Nath Vs. Income Tax Officer, Special Circle, D. Ward, Kanpur and another – AIR 1966 SC 81, a three-judge Bench of this Court commenting on the High Court’s jurisdiction under Article 226 opined that this Article is deliberately couched in comprehensive language so that it confers wide power on High Court to ‘reach injustice wherever it is found’.
44. Delivering the judgment Justice Subba Rao (as His Lordship then was) held that the Constitution designedly used such wide language in describing the nature of the power. The learned Judge further held that the High court can issue writs in the nature of prerogative writs as understood in England; but the learned Judge added that the scope of these writs in India has been widened by the use of the expression “nature”.
45. Learned Judge made it very clear that the said expression does not equate the writs that can be issued in India with those in England but only draws an analogy from them. The learned Judge then clarifies the entire position as follows: 
“..It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Article 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself….” (See para 4, page 85)
46. Same view was also expressed subsequently by this Court in J.R. Raghupathy etc. Vs. State of A.P. and Ors. – AIR 1988 SC 1681. Speaking for the Bench, Justice A.P. Sen, after an exhaustive analysis of the trend of Administrative Law in England, gave His Lordship’s opinion in paragraph (29) at page 1697 thus:
“29. Much of the above discussion is of little or academic interest as the jurisdiction of the High Court to grant an appropriate writ, direction or order under Article 226 of the Constitution is not subject to the archaic constraints on which prerogative writs were issued in England. Most of the cases in which the English courts had earlier enunciated their limited power to pass on the legality of the exercise of the prerogative were decided at a time when the Courts took a generally rather circumscribed view of their ability to review Ministerial statutory discretion. The decision of the House of Lords in Padfield’s case (1968 AC 997) marks the emergence of the interventionist judicial attitude that has characterized many recent judgments.” 
47. In the Constitution Bench judgment of this Court in Life Insurance Corporation of India vs. Escorts Limited and others, [(1986) 1 SCC 264], this Court expressed the same opinion that in Constitution and Administrative Law, law in India forged ahead of the law in England (para 101, page 344).
48. This Court has also taken a very broad view of the writ of Mandamus in several decisions. In the case of The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another Vs. K.S. Jagannathan and another – (AIR 1987 SC 537), a three-Judge Bench of this Court referred to Halsbury’s Laws of England, Fourth Edition, Volume I paragraph 89 to illustrate the range of this remedy and quoted with approval the following passage from Halsbury about the efficacy of Mandamus: “..is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right, and it may issue in cases where, although there is an alternative legal remedy yet that mode of redress is less convenient beneficial and effectual.” (See para 19, page 546 of the report)
49. In paragraph 20, in the same page of the report, this Court further held: “…and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it property and lawfully exercised its discretion”
50. In a subsequent judgment also in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. Vs. V .R. R udani and Ors. – AIR 1989 SC 1607, this Court examined the development of the law of Mandamus and held as under:
“21. ……….mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smith states: “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter common law, custom or even contract.” (Judicial Review of Administrative Act 4th Ed. P. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice wherever it is found’. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.” (See page 1613 para 21).

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